The Republic Vrs Amponsah [2023] GHADC 201 (7 July 2023)

IN THE DISTRICT COURT HELD AT SEFWI JUABOSO ON FRIDAY THE 7TH DAY OF JULY, 2023 BEFORE HIS WORSHIP SAMUEL ENTEE JNR. CC No. 204/23 THE REPUBLIC VRS. KWAME AMPONSAH Accused Person: Present Chief Inspector Solomon Bismark Boatri for Rep: Present. JUDGEMENT The accused person is charged with 4 counts of conspiracy to commit stealing, causing unlawful damage, unlawful entry and stealing contrary to section 23(1) and 124(1), Section 172(1)(a), Section 152 and Section 124(1) of the criminal offences Act, 1960 (Act 29) respectively. The particulars of the offences are that, on 10th January, 2022 at Sefwi Kofikrom, accused and other persons did agree to act together with a common purpose in committing stealing, and intentionally and unlawfully caused damaged to a padlock valued GH₵50 the property of Richard Bediako, and unlawfully entered the store room of Richard Bediako with the intent to commit stealing, and dishonestly appropriated 1700 pieces of cocoa sacks valued GH₵17,000 the property of Richard Bediako. The facts of the case as presented by the prosecution are that Richard Bediako the complainant in the case is a District Manager of Adikanfo Commodities, a license 1 | P a g e cocoa buying company at Sefwi Kofikrom, and the accused was a laborer at the complaintant cocoa depot. On 9th January, 2022, the complainant and his workers including the accused went to work and closed about 6:30pm. On 10th January, 2022, the complainant depot keeper and the accused reported to work and saw that the depot store room had been broken into and a quantity of cocoa sacks stolen. The depot keeper and the accused went to the complainant and informed him of what had happened. The complainant accompanied by the depot keeper and the accused went to the depot and saw that the padlock to the store room had been broken and 1700 pieces of cocoa sacks stolen. Complainant made an announcement at a local information centre at Sefwi Proso and Kofikrom over the theft of his sacks. On 11thJanuary, 2022, complainant went to work and saw that 500 pieces out of his stolen sacks had been returned. On the same day, the complainant had a hint that it was the accused and other persons who committed the crime. Complainant reported the case to the police at Juaboso. Accused after committing the crime went into hiding. On 24th April,2023, accused was spotted at Sefwi Proso by some youth and arrested him and handed him over to the police at Juaboso. On caution, accused admitted the offence and after investigations he was charged with the offences as stated in the charge sheet. In order to prove their case against the accused, the prosecution called 3 witnesses namely; Annor Essien Senior (Pw1), the driver who conveyed the sacks, Adamu Lalabu (Pw2) the District Manager for Adikanfo B, a cocoa buying company and General Constable Annor (Pw3), the investigator in the case. The case for the prosecution 2 | P a g e Essien Senior testified that, he was a tricycle rider and some time ago, the accused and one Kwabena Asante engaged him to convey some sacks at the complainant, Richard Bediako’s depot at Sefwi Proso. That he went with them and conveyed 11 sacks each containing 25 sacks at the depot to Kwabena Asante’s house. Adamu also testified that one of the workers at the depot of Richard Bediako, the District Manager for Adikanfo A, called him that some persons had broken into the store room of the company and stolen some sacks. That he went there to verify and found that 1700 sacks had been stolen, so they made radio announcement to that effect and the following day someone informed them that accused was one of those who stole the sacks. So they caused the arrest of Kwabena Asante but accused ran away, and Kwabena Asante was prosecuted by the police, and the accused was recently arrested by the police. The case for the Accused. The accused testified that he and Kwabena Asante worked for Adikanfo A cocoa buying company. That one day a vehicle brought sacks which they had to offload into a store room at the depot. But the store room was locked and the complainant instructed them to break the door after which they deposited the sacks in the store room. That about a week later, he and Kwabena Asante engaged a tricycle rider and in the night conveyed 12 bales of 25 sacks each from the store room at the depot to Kwabena Asante’s house. The accused said, the following morning the complainant threatened to invoke a curse so he became afraid and talked to Kwabena Asante that they should return the sacks and during the night they engaged the same tricycle rider and conveyed the sacks back to the depot. That subsequently, Kwabena Asante was arrested but he (accused) ran away and when he heard that the complainant had been transferred, he returned to Sefwi Proso and was arrested by the police. 3 | P a g e The issues for determination are: 1. Whether or not accused is guilty of conspiracy to commit stealing. 2. Whether or not accused is guilty of causing unlawful damage. 3. Whether or not accused is guilty of unlawful entry. 4. Whether or not accused is guilty of stealing. Issue 1: Whether or not accused is guilty of conspiracy to commit stealing. Section 23(1) of Act 29 under which accused is charged with conspiracy provides that “where two or more persons agree to act together with a common purpose for or in committing or abetting a criminal offence, whether with or without a previous concert or deliberation each of them commits a conspiracy to commit or abet the criminal offence.” For the prosecution to succeed against the accused, therefore they must prove beyond reasonable doubt that accused: 1. Agreed with another person to act together with a common purpose. 2. In committing the stealing. Essien Senior told the court that on the day of the incident, the accused and Kwabena Asante came to him at home at about 1:06am that he should convey some sacks at the depot to Kwabena Asante’s house and later in the morning they would share the sacks among the smaller depots. Accused declined to cross-examine Essien Senior which implied that Essien Senior’s evidence against him was true. Accused in his evidence-in-chief said Kwabena Asante invited him to his house and told him that he had someone at Brekum who needed sacks for his cashew business 4 | P a g e so they should go and take some of the sacks. That he asked Kwabena Asante how much the person would pay for the sacks and Asante said GH₵4 per sack and he agreed to what Asante told him. That in the night he and Asante engaged a tricycle and went and conveyed the sacks from the depot. In his investigation caution statement to the police which General Constable Gordon Annor (Pw3) tendered in evidence as exhibit A which accused relied on in his charged caution statement, exhibit B, accused stated that he and Kwabena Asante teamed up to steal Richard Bediako’s cocoa sacks. That he entered the depot room and picked the sacks and then called Kwabena Asante to bring Aboboyaa, tricycle to convey the sacks. The evidence of accused showed that he met with Kwabena Asante and discussed how to commit the stealing of the sacks and agreed to act together. From there they went and hired Essien Senior in furtherance of their common purpose to commit stealing as the evidence showed. On the evidence therefore, I find that the accused is guilty of conspiracy to commit stealing. Issue 2: Whether or not Accused is guilty of causing unlawful Damage. On this issue, Adamu (Pw2) told the court that he was informed that someone had broken into the store room where the sacks were kept and when he went there to verify it, he saw that indeed the lock has been broken. To a question by accused as to whether he remembered that the day the sacks were brought, the complainant Richard Bediako, let them break the door to the store room, Pw2 answered that the door was not broken. 5 | P a g e In his evidence-in-chief accused said someone used to sleep in the store room but the person locked the door when he vacated the storeroom. So Richard Bediako let them break the door and packed the sacks in the store room. When the prosecution denied that they broke the door to the store room before they put the sacks in the storeroom, the accused maintained that they broke the door. Despite the denial by the prosecution, both during the cross-examination of Pw2 by accused, and during the cross-examination of accused that the door to the store room was broken before the sacks were put in the room, the accused did not call further evidence to support his evidence that they broke the door before the sacks were put in the store room. The court is therefore inclined to accept the evidence of the prosecution that the door was not broken before the sacks were put in the store room. In Exhibit A, accused stated that he personally entered the depot room and picked the sacks. Since accused could not establish that the door to the store room was broken before the sacks were put in there, the court presumes that since he entered the store room to remove the sacks then he caused damaged to the lock before he entered the store room. I therefore find that the accused caused damage to the store room lock. Section 172(1)(a) under which accused is charged with causing unlawful damage provides that “A person who intentionally and unlawfully causes damage to property to a value not exceeding one million cedis commits a misdemeanor.” For the prosecution to succeed against accused, they must establish beyond reasonable doubt that: 1. Accused caused damage to the storeroom lock. 2. He caused it intentionally and 3. He caused it unlawfully. 6 | P a g e The court has found that accused caused damage to the storeroom lock, but did he do so intentionally and unlawfully? Section 11(1) of Act 29 under intent provides to the effect that where a person does an act for the purpose of causing an event, that person intends to cause that event. Accordingly, since the store room was locked and accused entered it without using a key to unlock the door, then the court is of the view that he intended to cause damage to the lock as he could not have entered the storeroom without breaking in. Accordingly, I find that the accused person intentionally caused damaged to the lock to the store room. Section 1749 (1) of Act 29 explains unlawful damage as “A person does an act or causes an event unlawfully where that person is liable to a civil action or proceedings or to a fine or any other punishment under an enactment (a) in respect of the doing of the act causing an event.” From the evidence, it is clear to the court that the cocoa depot or the store room does not belong to the accused. So it is the view of the court that, if the complainant takes a civil action against the accused in respect of the damage caused to the lock to the store room, the action would be successful. I therefore find that accused unlawfully caused damage to the store room lock. Accordingly, I find that accused is guilty of causing unlawful damage. Issue 3: Whether or not accused is guilty of unlawful entry. Section 152 of Act 29 under which accused is charged with unlawful entry provides that “A person who unlawfully enters a building with the intention of committing a criminal offence in the building commits a second degree felony.” 7 | P a g e So the prosecution must prove that accused entered the store room, he entered it unlawfully and he had the intention of committing a criminal offence at the time he entered the storeroom. The evidence showed that at the time of the incident, accused was a worker at the complaint’s cocoa depot, so accused had access to the depot as a worker. Section 153 of Act 29 explains unlawful entry as “A person unlawfully enters a building if that person enters otherwise than in the exercise of a lawful right, or by the consent of any other person able to give the consent for the purpose for which that person enters.” The evidence indicated that accused went on the depot premises deep in the night, and entered the storeroom. Accused was not the day or night watchman at the depot, he was a laborer who worked during the day. It is therefore the view of the court that at the time accused entered the store room, he was not exercising any lawful right as he was not supposed to be there in the night because he worked during the day. There was also no evidence that it was the depot keeper or the District Manager, complaint, who permitted or gave consent to accused to enter the store room at that time. I therefore find that accused entered the store room unlawfully. Again, the evidence showed that very deep in the night, accused caused damage to the store room lock, entered the store room took away some empty cocoa sacks. It is therefore clear to the court that, accused entered the store room with the intention of committing a criminal offence. On the evidence therefore, I find that accused is guilty of unlawful entry. 8 | P a g e Issue 4: Whether or not Accused is guilty of stealing. Section 124(1) of Act 29 provides that “A person who steals commits a second degree felony.” Section 125 defines stealing as “A person who steal dishonestly appropriates a thing of which that person is not the owner.” In Ampah and Another V. The Republic [1976]1 GLR 403, the court identified the elements of stealing as: 1. Dishonesty, 2. Appropriation, and 3 3. Property belonging to another person. Therefore, the prosecution must prove that: a. The sacks did not belong to accused. b. Accused appropriated the sacks. c. The appropriation was dishonest. The evidence before the court indicated that the cocoa sacks accused took from the store room did not belong to him. Again, in Exhibit A, accused stated that he personally entered the depot room and picked the sacks. After that he called Kwabena Asante to bring a tricycle and they conveyed 375 pieces of the sacks. Accused further said in his evidence-in-chief that he and Kwabena Asante engaged a tricycle which conveyed the sacks at the depot to Kwabena Asante’s house. Section 122 (2) 0f Act 29 provides that “An appropriation of a thing means any moving, taking, obtaining, carrying away or dealing with a thing with the intent that a person may be deprived of the benefit of the ownership of that thing, or of the benefit of the right or interest in the thing, or in its value or proceeds, or part of that thing.” 9 | P a g e The evidence showed that the accused carried away the cocoa sacks at the depot. However, he also said he returned the cocoa sacks. In Exhibit A, he stated that he later returned the sacks after the complainant made announcement on the local information center and threatened to invoke a curse on those who stole the sacks. He repeated in his evidence-in-chief that the District Manager, complainant brought eggs and schnapps to invoke a curse. So he became afraid and told Kwabena Asante that they should return the sacks to the depot. So in the evening they engaged the same tricycle rider who conveyed the sacks to Kwabena Asante’s house and they conveyed the sacks back to the depot. However, when Essien Senior, the tricycle rider gave his evidence, he did not tell the court that he returned the sacks to the depot. And accused also did not remind Essien Senior that he returned the sacks to the depot. In fact, accused declined to cross-examine Essien Senior. So the court is of the view that accused’s evidence that he and Kwabena Asante returned the sacks to the depot could not be correct. And this is buttressed by the fact that during cross-examination of accused, the prosecution made it known that the police retrieved 500 pieces of the sacks in the house of Kwabena Asante, and so out of the 1700 pieces of sacks, only 500 pieces were retrieved leaving 1200 pieces that could not be retrieved. The court is therefore of the view that the accused by carrying away the sacks had the intent to deprive the complainant of the benefit of the ownership of the sacks. I therefore find that, accused appropriated the cocoa sacks. In addition, Section 120(1) of Act 29 provides that “An appropriation is dishonest a. If it is made with an intent to defraud or b. If it is made by a person without claim of right, and with a knowledge or belief that the appropriation is without the consent of a person, for whom that person 10 | P a g e is trustee or who is owner of the thing, or that the appropriation would if known to the other person be without the consent of the other person.” In the case of Ampah and Another V. The Republic [1976]1 GLR 403, the court held that Section 120(1) of Act 29 contemplate a two kind or types of dishonest appropriation: 1. Where the appropriation was made with intent to defraud or 2. Where the appropriation was made without a claim of right and without the consent of the owner. The evidence showed that the accused was not the owner of the cocoa sacks. There was also no evidence that he had negotiated to buy the sacks and had bought the sacks from complainant. So it isclear to the court that, accused appropriated the cocoa sacks without a claim of right to the sacks. And the evidence clearly showed that the complainant did not consent to the appropriation of the sacks, as accused himself told the court that the complainant made announcement at the local information center at Sefwi Proso, and even threatened to invoke a curse on those who took the sacks away. I therefore find that the accused dishonestly appropriated the cocoa cocoa sacks. Accordingly, I find that accused is guilty of stealing. On all the evidence, the court is satisfied that the prosecution have proved their case against the accused person beyond reasonable doubt. Accordingly, the accused person is hereby convicted on each of the four counts of conspiracy to commit stealing, causing unlawful damage, unlawful entry and stealing. According to the prosecution, accused is a first offender, 11 | P a g e Consequently, accused is hereby sentenced to pay a fine of 300 penalty units on each count to run concurrently or in default 18months IHL. The fines are non-cumulative. The accused is hereby ordered to pay GH₵12,000 as compensation to the complaint in respect of the 1,200 sacks that could not be retrieved. Restitution over is hereby made for the 500 sacks retrieved from the accused to be handed over to the owner, complainant. SGD::: SAMUEL ENTEE JNR ESQ. DISTRICT MAGISTRATE. 12 | P a g e